Intellectual Property Law

Examples of the Intentional Computer Damage Crime

By Martha L. Arias

Computer fraud, with its multiple ramifications, is among the ever increasing criminal conducts in this information era. The United States Code § 1030 penalizes fraud and other computer related crimes. Section 1030 specifically lists seven computer fraud and related activities and sets punishment for them. This article addresses one of the crimes listed by §1030 that penalize the intentional damage cause to a third party computer.

According to the U.S.C. §1030(a)(5), it is a crime to knowingly transmit a program, information, code or command to intentionally cause damage to a protected computer. Also, it is a crime to intentionally access a protected computer, without authorization, and as a result of such conduct, recklessly cause damage, or damage and loss, to that computer. Reading the criminal conduct is easy (it seems so); yet, determining the exact conduct to which this article applies is not always an easy task.  For instance, does these conducts apply to people's computers, corporate, and government computers? This is important because damages to corporate and government computers appear to bring more serious consequences. In U.S v. Middleton 231 F3d 1207, (2000, CA9 Cal), a California court held that § 1030(a)(5) applies to personal and corporate computers. Now, what are examples of the intentional computer damage crime?

Many actions, some of them very sophisticated, may typify the computer damage crime.  For example, using radio hardware and computer gear to send signs and take control of a city's computer-based radio system, causing damages to the city communications and computers, constitutes a crime under §1030(a)(5).  See United States v. Mitra, 405 F3d 492 (2005, CA7 Wis). According to this holding, §1030(a)(5) also applies to government computers.

Employees that knowingly insert or download Internet programs intending to cause damage to the employer's computer or laptop commit a crime under §1030(a)(5). This conduct includes cases in which the employee uses these programs to delete incriminating files in the employer's computer or laptop, upon termination of the employer/employee relation, and, as a result, damage is caused to the computer. See Int'l Airport Ctrs., L.L.C. v Citrin, 440 F3d 418 (2006, CA7 Ill).

The most obvious conduct criminalized under §1030(a)(5) are those performed by computer hackers. Those who, sometimes just for fun, but still intentionally, access a third party computer, without authorization, and cause damages to the computer, may be charged under §1030(a)(5).     

A more complex case under §1030(a)(5) is America Online v. LCGM, Inc., 46 F Supp 2d 444 (1998, ED Va).  In this case, the defendant operator of a pornographic website used the Internet Service Provider (ISP) services to send bulk e-mail massages to the ISP's accounts. This conduct exceeded the ISP authorized access and impaired (damaged) the ISP's computer facilities.

Damages caused under §1030(a)(5) may take variants.  For instance, a person that knowingly transmits a code or command to access, without authorization, a corporate computer, and intentionally transmits sensitive data from that computer, may be in violation of §1030(a)(5) when the authorized access congests or interrupts a business network.  Congesting or interrupting certain businesses' networks may be severe enough to be considered computer damage.  See  Four Seasons Hotels & Resorts B.V. v. Consorcio Barr, S.A., 267 F Supp 2d 1268, 2003, (SD Fla 16).

Although hacking might have been the primary conduct intended to be criminalized under §1030(a)(5), this section also applies to other sophisticated conducts against private, corporate, and government computers.  Some of these conducts may even derive from other criminal conducts such as spam.   

Full post as published by IBLS Internet Law Blog on March 02, 2009 (boomark / email).